Category Archives: Managing Authors’ Rights

Who Owns the Termination of Transfer Right?

Posted November 1, 2017

We would like to thank R. Anthony Reese, Chancellor’s Professor of Law at UC Irvine, for contributing the following post.

Head shot of R. Anthony ReeseU.S. copyright law gives an author the right, under certain conditions, to terminate a copyright transfer or license that the author granted decades earlier, as Lydia Loren’s earlier post explained. This termination right must be exercised within a specific time, and the formal termination process can’t begin until 25 years after the author executes the grant.

Given this long delay, who can terminate if the author dies before the time for termination arrives? The basic answer is fairly straightforward. If the deceased author left only a surviving spouse (whom the statute names as the author’s “widow or widower”), then the spouse can exercise the termination right. If the deceased author left only surviving kids, then the kids can exercise the termination right. If the author left a surviving spouse and kids, then the spouse and kids share the termination right. (Other situations are more complicated: if the author left any surviving grandkids of a deceased child, those grandkids get to share in the termination right as well.) Only if the author left no surviving spouse, kids, or grandkids does the author’s will (or the law of intestate succession) determine who owns the termination right.

This aspect of termination has always created problems for gay and lesbian authors with same-sex partners. Because the termination right belongs to a deceased author’s “widow or widower,” copyright law must determine who qualifies as the author’s spouse. In doing so, copyright law has treated gay and lesbian authors with same-sex partners less favorably than authors with different-sex partners ever since the copyright act first allowed termination in 1978.

The statute defines an author’s “widow” or “widower,” using facially neutral language, as “the author’s surviving spouse under the law of the author’s domicile at the time of his or her death.” 17 U.S.C. § 101. This definition doesn’t expressly distinguish between same-sex and different-sex spouses. In practice, though, in deciding which marriages copyright law will recognize, this definition has always treated authors with same-sex partners unequally, because it incorporates unequal treatment embedded in state law, in federal non-copyright law, and in foreign law.

An author’s widow or widower for copyright termination purposes is the author’s surviving spouse under the law of the deceased author’s domicile. In the U.S., the author’s place of domicile is generally the state where the author resides. But from 1978 until 2004, no U.S. state allowed same-sex couples to marry. As a result, no same-sex partner of a gay or lesbian author could qualify as a widow or widower entitled to termination rights. (Indeed, before 1998, an author whose partner did not qualify as a surviving spouse could not even designate that partner in the author’s will as the person who could exercise the termination right.)

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Grappling With The Most Notoriously Complex Provision in U.S. Copyright Law

Posted October 26, 2017

Erica Row, Julia Wu, Pam Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner

The following guest post was written by Julia Wu and Eric Malmgren, students at the Intellectual Property, Arts, and Technology Clinic at UC Irvine Law. We’re grateful to the clinic students and to their director, Jack Lerner, for all their work in reviewing the Termination of Transfer tool.

The law on termination of copyright transfers is complicated—really complicated. As members of the research team tasked with “vetting” the Authors Alliance/Creative Commons Termination of Transfer Tool, we became acutely aware of just how intricate, technical, and downright maddening this area of law can be.

In 2016, Authors Alliance approached the UCI Intellectual Property, Arts, and Technology Clinic for help launching the Termination of Transfer Tool (“ToT Tool”), an online resource to educate authors about termination of transfers and roughly estimate whether a work is eligible for a termination. They wanted to ensure that the ToT Tool correctly applied the law to estimate copyright duration and the timeframes during which a termination of transfer could be executed.

It’s a cliché, but in this case it fits perfectly: we were thrown into the deep end of the pool, and we had to learn quickly how to swim. Together with fellow clinic member Erica Row, Professor Jack Lerner, and our friends at the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, we immersed ourselves in §§ 203 and 304 of the Copyright Act, relevant case law, and treatises such as Nimmer on Copyright.

After extensive research, our team met to map out the logical steps needed to determine whether a given work would likely be eligible for a termination of transfer.  Our goal was to create a set of binary (yes-no) questions and simple equations that would reliably predict whether a termination right likely existed and when it could be exercised. UCI law students standing next to an outline of the ToT toolSeveral of these questions were derived from the Copyright Act, such as whether the copyright was assigned through a last will and testament. If so, it cannot be terminated.  Others depended on factors found in important court decisions, such as CCNV v. Reid, which provided guidance as to whether a given work is a “work made for hire” and thus ineligible for termination. Our “map” of termination law became a flowchart the length of a large UCI Law classroom.

The most basic analysis of whether a transferred copyrighted work is eligible for termination requires four main dates: the date of the work’s creation, the date of the work’s publication (if applicable), the date of copyright registration (if applicable), and the date of the transfer or assignment. There are ninety-three years between the relevant years of 1923 and 2016. Multiplying ninety-three by itself four times (i.e., 934) results in 74,805,201 possible combinations of those four dates.  In light of the millions of possibilities, a flowchart on a whiteboard—no matter how big—would not allow us to evaluate enough scenarios to verify that the ToT Tool accurately analyzed transfer eligibility, so we developed a spreadsheet that mirrored the ToT Tool’s functionality and could be used as an independent verification method—essentially, a parallel tool. As we discovered new and sometimes minor nuances of the termination provisions, we devised ways to address them within the spreadsheet. Over time, our spreadsheet grew more and more intricate.

We found that rather than attempt to review all 75+ million date combinations, we could focus on dates that corresponded to important changes in U.S. copyright law, like January 1, 1978, the date the 1976 Copyright Act went into effect. With these significant dates in mind, we created a list of date combinations that would likely reveal whether the ToT Tool and our spreadsheet correctly addressed the nuances of the termination provisions.

Our work culminated in an afternoon in which we trained fourteen other students in the UCI IPAT Clinic on the use of the Authors Alliance/Creative Commons ToT Tool, and gave each one a list of date combinations to enter into both the Tool and our spreadsheet. Members of the IPAT Clinic processed hundreds of the highest-priority date combinations that we could identify. We gathered the results and analyzed any discrepancies to determine whether the ToT Tool or our spreadsheet accurately predicted the correct outcome. We also met and talked numerous times with Authors Alliance’s then-Executive Director Mike Wolfe, and Professor Pamela Samuelson.

Termination of copyright transfers is a complex and sometimes unsettled area of the law. For the first time ever, the Authors Alliance/Creative Commons Termination of Transfer Tool makes what has been an arcane and inscrutable area of the law accessible to everyone.  We are incredibly proud to have contributed to this effort.

Use the Termination of Transfer Tool, read the materials, and if you think you may have a work eligible for a termination of transfer, speak with an attorney who can help you get your rights back.


Eric Malmgren and Julia Wu are J.D. Candidates at the University of California, Irvine School of Law. During the 2016-2017 academic year, they were Certified Law Students in the UCI Intellectual Property, Arts, and Technology Clinic. 

Why is an Author Able to Terminate a Transfer of Copyright?

Posted October 17, 2017

We are grateful to Professor Lydia Pallas Loren of Lewis & Clark School of Law for contributing the following guest post.

Headshot of Lydia LorenThe U.S. Copyright Act is clear: Authors have a right to terminate a transfer of their copyrights 35 years after they have signed on the dotted line.* That right to terminate cannot be waived, nor is there any way to “contract around” it. It does not matter if the contract purports to assign the copyright for “the entire term of copyright” or “in perpetuity” or if the contract prohibits any attempts at termination. Why did Congress include this significant, unwaivable right in its comprehensive revision of the Copyright Act?

Some assert that the reason for the termination rights is paternalistic—it seeks to protect authors who, in general, lack business acumen. By providing authors with an ability to recapture their copyrights, the law gives authors, who need government protection, a second bite of the apple. But, if authors on a whole lack business acumen, what makes us think the author would be any better at obtaining a deal on more favorable terms 35 years later?

In fact, the evidence points in another direction to explain Congress’ decision. Congress recognized that often transfers of copyright are entered into before the authors have solid information from which to assess the value of the copyrighted work. This puts the author in what Congress called an “unequal bargaining position.” After 35 years has passed, they should have more information about the work’s value, and that would be an appropriate time to allow the author to enter into a new bargain, based on a better assessment of the value of the work. In other words, Congress viewed the termination right as a way for authors to obtain compensation at a level that more accurately reflects the true value of their works.

For the author who sold their copyright for a pittance and the work turned out to be a blockbuster, termination can play out the way Congress thought it might. But the termination right is not just about money. For an author who thinks her publisher has not done enough to market the book and that explains its lackluster sales, terminating that transfer allows the author to seek out a new publisher. For the author whose work has failed to gain a commercially viable audience, but whose work has noncommercial value, such as for research, terminating the transfer allows the author to seek out a new “home” for that copyrighted work. Once the copyright has been recaptured by the author, that new home might be with a new publisher, or it might in the public domain (through a dedication to the public), or on an open access platform.

Armed with the information gained about the appeal of the work over the 35 year period in which the copyright was owned by someone else, Congress provided the author with a way to renegotiate the deal. And that is precisely what Congress intended when it created the termination right.


* Note that the timing of the termination right can vary depending on the circumstances and the date of the contract—see the Authors Alliance/Creative Commons Termination of Transfer tool for more information.

Lydia Pallas Loren is Henry J. Casey Professor of Law at Lewis & Clark Law School in Portland, Oregon. Professor Loren is the author of Renegotiating the Copyright Deal in the Shadow of the ‘Inalienable’ Right to Terminate.

How the Rightsback.org Termination of Transfer Tool Helps Authors

Posted October 12, 2017

The following is a guest post by Luke Ewing, student attorney at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic. We’d like to thank Luke and his classmates Sean Doran and Andi Wilt, and their supervisor Blake Reid, at Colorado Law; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of the Termination of Transfer tool and templates.

Erica Row, Julia Wu, Pamela Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner (not pictured: Sean Doran, Luke Ewing, Andi Wilt, and Blake Reid)

Yesterday, Authors Alliance and Creative Commons released the Termination of Transfer tool at rightsback.org. You may be wondering what the tool does and how termination helps authors. Along with many other beta testers, student attorneys at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic and the UC-Irvine Intellectual Property, Arts, and Technology Clinic helped verify that the tool accurately reflects the state of termination law. We scoured statutes, regulations, and case history to determine what is required to make the termination process go smoothly under a wide range of circumstances. We also tested the tool to ensure that its results accurately reflect the current state of the law. Finally, we drafted a standardized form and written guidance that make the paperwork simple once an author decides to exercise their termination right.

Authors who assigned their copyrights many years ago may feel that their works are being underutilized or misrepresented, or they may want to renegotiate their earlier agreements. Fortunately, Congress devised a mechanism by which authors can take back those rights. This is a critical opportunity for authors who made less-than-advantageous deals early in their careers, saw their works become unavailable when a publisher went bankrupt, or want to release their works into the public domain or under an open access license. But because the window for termination opens decades after that original transfer of rights and requires navigating a particularly difficult and complex area of copyright law, exercising termination rights can be daunting.

Termination windows are determined by three separate subsections of the Copyright Act (§ 203, 304(c), and 304(d)), the format and instructions for notifying the Copyright Office are spelled out in a list of very particular regulations, and each subsection of the Copyright Act yields a different list of regulations. Determining whether the window is open for a copyrighted work, or which subsection applies, depends on a number of variables, including:

  • Was it published?
  • If so, when was it published?
  • When were rights transferred?
  • Did those rights include the right of publication?
  • Has the agreement already been renegotiated?
  • Were there multiple authors involved, and do they all agree to terminating the transfer?
  • Are all the authors still alive?
  • And more.

Every one of these questions is relevant, and every answer leads down different branches of a decision tree that indicates whether, when, and how an author may exercise termination rights rights. Without help, trying to understand these rights can be tedious and discouraging.

The tool makes understanding the process easy.  It knows which questions to ask and what to do with the answers to those questions. Within minutes, the tool helps authors better understand how termination of transfer works. Congress intended for authors to exercise these rights, and Authors Alliance wants to simplify the process by removing as much confusion and uncertainty as possible. If you want to learn more about taking back the rights to your work, or are just curious about the process, you can try out the tool right now. It’s free, simple, and only takes a few minutes.

And if you decide to exercise your termination rights, check out our termination of transfer resource page for notice of termination templates, a cover letter, and instructions on how to notify the Copyright Office as well as any relevant parties.

New Resource: Termination of Transfer Templates

Posted October 11, 2017

Earlier today, we announced the launch of our new Termination of Transfer tool, developed with our partners at Creative Commons. The online tool, located at rightsback.org, helps authors understand the eligibility and timing requirements for terminating transfers. To effectuate a termination right, authors need to provide notice to the party whose grant is being terminated and submit a copy of that notice to the U.S. Copyright Office. So to complement the tool, we developed a new resource that includes notice of termination templates and accompanying information.

We’re grateful to law students Sean Doran, Luke Ewing, and Andi Wilt, and their supervisor Blake Reid, at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of these templates.

Check out our new Termination of Transfer resource page for more information about the online tool, the templates, and related news!

20170928 ToT Templates

Authors Alliance & Creative Commons Launch New Termination of Transfer Tool

Posted

creative commons infographic

Authors Alliance and Creative Commons are pleased to announce the official launch of our jointly-stewarded Termination of Transfer tool, now available at rightsback.org. The tool is designed to help authors navigate the “termination of transfer” provisions of U.S. copyright law.

Authors who enter into publishing, recording, or other types of agreements involving their creative works are routinely asked to sign away their rights for the life of copyright—which generally lasts 70 years after the author dies in the United States. Fortunately, authors do have options if they come to regret these decisions and want to share (or renegotiate the terms of sharing) at a later date. The termination of transfer provisions, when exercised properly, let authors walk away from or renegotiate their copyright transfers. The key feature that makes these rights so powerful is that termination rights can’t be signed away. They apply “notwithstanding any agreement to the contrary.”

Termination of transfer allows creators (or, in some cases, their family members) to regain copyrights to creative works they may have signed away decades ago. Our tool helps them understand if those termination rights exist, and if not, when they may exist in the future. With rights back in hand, authors have many options for getting their works in front of new audiences, from sharing their works with the public using a Creative Commons license to negotiating new agreements with publishers.

Though these termination rights are an extremely powerful boon for authors, exercising them can be daunting. The law is complex and difficult to navigate, requiring attention to detail and careful timing. The termination process is only available within a five-year window, and can only be exercised if notice is provided significantly in advance of the actual termination.

Rightsback.org is the result of a partnership between Authors Alliance and Creative Commons, and draws on the expertise of both organizations to demystify this little-known area of U.S. law. The tool provides basic information about the eligibility and timing of termination rights based on user input, along with suggestions on next steps that authors may wish to take in securing rights.  While this tool is currently U.S.-based only, Creative Commons plans to develop a database of other country laws that enable authors and creators to similarly terminate or reclaim their rights when their agreements are governed by those other laws.

We encourage users to try out the tool and to contact us with any questions or suggestions. We are excited to share this resource with our creative communities, and look forward to your comments!

Authors Alliance and Creative Commons are grateful to the Arcadia Fund, a charitable fund of Lisbet Rausing and Peter Baldwin, for their generous support of the creation of the Termination of Transfer tool. See our full list of personnel and thank-yous at rightsback.org/about.

Termination of Transfer FAQs

What does termination of transfer mean?

Termination of transfer is a way for authors (or their family members) to reclaim rights to works that they previously signed away (after a statutorily specified amount of time). An author’s ability to exercise this option depends on many factors, including how old the work is, when the transfer agreement was signed, and whether the work was ever published.

Why would I want to get my rights back in a work? What can I do with the rights once I have them?

There are number of reasons you may wish to get your rights back in a work. Sometimes, you may be motivated by the work’s lack of performance as currently licensed, such as when your book is no longer being printed or isn’t selling well anymore. Or maybe your work is performing even better than expected and you now want leverage to renegotiate a long-outdated contract. You may even wish to open your work up to more readers through digital distribution or free licensing.

Whatever reason you have for getting your rights back, there are a variety of options available to you once you have them. You may relicense the work to another publisher or to the same publisher under different terms, you may release the work under an open access license, or you may self-publish the work either in a new print or digital edition. Success stories from authors who have received their rights back can be found here.

It is important to remember that terminating a transfer of rights is contract-specific only applies to the rights you initially contracted for. These rights will come back to you, though your publisher may retain certain rights to derivative works, international publications, etc. If you have contracted your rights out to multiple publishers, you will have to execute a termination for each contract.

How does termination work?

Congress has granted authors the right to terminate a transfer of their copyright through three subsections of the Copyright Act (§§ 203, 304(c), and 304(d)). Whether termination is available for a given work is determined according to a long list of factors; however, a work typically must be at least 35 years old to qualify for termination, and notice must be given at least two years in advance before the right is exercised. Works much older than 35 years may still be covered under these provisions, and notice can be given up to ten years before termination so these windows vary greatly. If you think a work may be eligible for termination, we encourage you to go to rightsback.org and use the tool to get a sense of how these windows are calculated. In order to effectively terminate a transfer, the author must first give notice to both the publisher and the U.S. Copyright Office. Check out Authors Alliance’s guidance and templates for submitting a notice of termination.

If your work is not old enough or does not otherwise qualify for termination, seeking a rights reversion instead may be your best option for getting your rights back.

How is termination different from reversion?

Reversion is a process through which an author can get back some or all of the rights she has signed away to a publisher, either through a contractual provision that permits her to regain rights in her book when certain conditions are met, or through voluntary negotiations if her contract does not have a reversion clause. To learn more about reversion, visit our Rights Reversion Portal.

The main difference between termination of transfer and reversion is that termination of transfer is a mandatory right granted by the U.S. Copyright Act, whereas reversion is a contractual commitment or a voluntary act by your publisher. Even if there is a clause in your contract that prohibits termination of transfer, you may still exercise this option. Reversion, on the other hand, is not always guaranteed.

Reversion can also occur at any time, whereas a work must be at least 35 years old in order for termination of transfers to apply. Thus, if your work is relatively new, reversion may be your best option for regaining rights in your work.

How can I determine if termination is an option for a given work?

Authors Alliance and Creative Commons have collaborated on a free and easy Termination of Transfer Tool, located at righstback.org, which educates users about termination of transfer and roughly estimates whether and when a work may be eligible for termination based on hypothetical scenarios. This tool is not legal advice, but may be helpful in an author’s initial information gathering before deciding whether termination is an option they are interested in pursuing. If you are not sure whether termination of transfer provisions apply to your work, you may want to seek legal advice from a licensed attorney.

What role does Authors Alliance play in this? Can Authors Alliance help me get my rights back?

Authors Alliance collaborated with Creative Commons to create the Termination of Transfer Tool which can be a useful resource for authors researching termination of transfer for the first time. While Authors Alliance cannot represent any individual authors seeking termination rights, we will continue to educate authors about their options regarding their copyrights. Our mission is to assist authors who want to reach wider audiences by disseminating their work more broadly, and termination of transfer is just one of the tools in an author’s toolbox to achieve that goal.

Where can I learn more?

More in-depth resources about termination of transfer can be found at Rightsback.org, including detailed information about how to calculate notice windows, what types of contracts are covered by this statute, who can terminate, and where you can gather the information needed to use the tool. If you have any additional questions about termination, you can send them to info@rightsback.org.

For more information about what to do once you have successfully gained your rights back, we encourage you to visit our Open Access Portal or our Rights Reversion Portal, which discuss how to use your copyright effectively to maximize your readership.

Notice and Takedown and Academic Digital Libraries

Posted August 8, 2017
photo of academic library

photo by Redd Angelo | CC0

Prior to joining Authors Alliance as Executive Director earlier this year, Brianna Schofield was the Clinical Teaching Fellow at UC Berkeley Law’s Samuelson Clinic, where she co-authored an article with Jennifer M. Urban, Clinical Professor of Law and Director of the Samuelson Clinic at UC Berkeley School of Law, examining academic libraries’ experiences with notice and takedown. Takedown and Today’s Academic Digital Library has now been published by Ohio State University Moritz College of Law’s I/S Journal of Law and Policy. We share a summary of the article below, and invite readers who are interested in learning more to access the full article here.

In recent years, academic libraries and archives have increasingly used digital means to preserve materials and provide access to users, allowing them to serve more diverse, and much more far-flung, populations. For example, libraries and archives are increasingly digitizing collections with unique or rare material that otherwise has limited circulation in order to improve long-term preservation and expand access to cultural heritage. The growth of online scholarship repositories and sharing sites, where academic authors post papers for wide access, is another central development. The evolution and the dissemination of academic works from print collections to open digital forms is widely heralded as increasing access to academic knowledge and fueling research.

Academic libraries have emerged as key players in the move to open access and are rapidly developing platforms that provide digital access to scholarship. As libraries and archives increasingly move into the online open access space, they are thrust more directly into debates over the Digital Millennium Copyright Act (DMCA) section 512 notice and takedown regime than they have been in the past. Section 512’s safe harbor from copyright liability is aimed at online services that host material contributed by others; however, libraries did not often host material posted by others and were therefore unlikely to be eligible for this protection. Newer institutional open-access repositories, on the other hand, may hold many works placed there by third parties, usually authors. These author-directed postings to institutional repositories may put academic libraries into the role of host, thus bringing them under the aegis of the formal notice and takedown system created by the DMCA.

Using survey questions and interviews, Schofield and Urban examined academic libraries’ interactions with both DMCA and non-DMCA takedown notices. They found that academic libraries most commonly receive non-DMCA takedown requests that are based on non-copyright issues (such as privacy) or that target materials the library itself placed online. In general, libraries have well-developed norms and practices in place to manage these types of requests to remove material.

They also found, however, that formal DMCA notices directed to libraries have historically been rare, but that this may be changing as open-access repositories hosted by libraries grow. Library respondents worried that an increase in DMCA takedown requests could result in valuable scholarship being removed from online repositories, thus limiting libraries’ ability to fulfill their missions to preserve and disseminate knowledge. In tracing the recent experience of academic libraries that have received DMCA takedown notices targeting materials in open access repositories, Schofield and Urban found that libraries have not yet developed norms and practices for addressing these requests.

To help libraries effectively manage increased takedown requests while maintaining publishers’ ability to monitor content made available in online repositories, Schofield and Urban recommend that:

  • Academic libraries should continue to educate authors about author-friendly publishing practices, and authors should retain more control of their own works.
  • Publishers, authors, and academic libraries should take steps to make the terms of publication agreements transparent.
  • Academic libraries should continue to support—and authors should embrace—open access policies.
  • Academic libraries should consider developing shared norms and best practices for DMCA notice handling similar to those they have developed for non-DMCA requests.
  • Academic institutions should ensure that librarians receive any DMCA notices targeting library materials that are sent to DMCA agents in other departments, and that library-developed best practices are followed in handling these notices.
  • Publishers should develop and publicly communicate reasonable notice-sending policies.
  • Publishers should ensure that third-party rights enforcement organizations, if used, comply with publisher notice-sending policies.
  • Academic libraries should consider creating educational materials about the counter notice process and tools that make it easy for authors whose works are challenged to send counter notices if their content is inappropriately targeted for takedown.

For more information about Schofield and Urban’s findings and recommendations, we invite you to read Takedown and Today’s Academic Digital Library.

Rights Reversion: Restoring Knowledge and Culture, One Book at a Time

Posted July 25, 2017

ALA District Dispatch LogoThe following post originally appeared on the American Library Association‘s District Dispatch blog on July 18. Thanks to Carrie Russell, Director of the Program on Public Access to Information at the ALA, for helping us to share information about Authors Alliance and rights reversion with the library community!

For many of us, it’s an all-too-familiar scenario: We’re searching for a book that’s fallen out of print and is unavailable to read or purchase online. Maybe it’s an academic text, with volumes held in only a few research library collections and all but inaccessible to the public. Or maybe it’s one of the many 20th-century books whose initial commercial life has ended, and whose copyright status means they have disappeared. Most of these books were published long before the advent of the Internet, or of e-books. Finding and accessing these volumes can be frustrating and time-consuming, even with the benefit of interlibrary loan. There’s all this valuable knowledge and culture out there, but we can’t get to it!

Wouldn’t it be great if there were some mechanism to give new life to the many books that have been “locked away,” to make them newly available, and to share them with new audiences?

Thanks to rights reversion, there is a way! Reversion enables authors to regain the rights to their previously published books, so that they can make them newly available in the ways they want. Some authors may want to bring their out-of-print books back into print, while others may want to deposit their books in open access online repositories. Still others might want to update their works, create e-book versions with multimedia resources, or commission translations.

A “right of reversion” is a contractual provision that permits authors to work with their publishers to regain some or all of the rights in their books when certain conditions are met. But authors may also be able to revert rights even if they have not met the triggering conditions in their contract, or if their contracts do not have a reversion clause at all! Reversion can be a powerful tool for authors, but many authors do not know where to start.

That’s where Authors Alliance comes in. We’re a non-profit education and advocacy organization whose mission is to facilitate widespread access to works of authorship by assisting authors who want to share knowledge and products of the imagination broadly. We provide information and tools designed to help authors better understand and manage key legal, technological, and institutional aspects of authorship in the digital age.

Our Guide to Understanding Rights Reversion was written to help authors navigate the reversion process. (Check out the rights reversion portal on our website to download or buy the guide, and for more resources including letter templates for use in contacting publishers about reversion). Since we released the guide two years ago, we’ve featured a number of reversion success stories. For example, Robert Darnton (professor emeritus at Harvard and a founding member of Authors Alliance) worked with his publisher to regain rights to two of his books about the French Enlightenment, and he has made them freely available to all via HathiTrust and the Authors Alliance collection page at the Internet Archive. Novelist and Authors Alliance member Tracee Garner successfully leveraged reversion to regain the rights to two of her previously published books. She’s currently working on a third volume, and she plans to release all three as a new trilogy.

Rights reversion has a great deal of potential to help authors and the public, and librarians are in an excellent position to help spread the word about reversion. Many senior academics have decades’ worth of scholarly books, many of which may be out of print and locked away in inaccessible library stacks. None of them are available online. Rights reversion can be a way to help authors ensure their intellectual legacy, while also bring their works to new audiences.

Reversion is good for authors, good for publishers, and good for the public interest. You can learn more by visiting our website, where we invite you to become a member of Authors Alliance! Basic membership is free, and our members are the first to hear of new resources, such as our forthcoming guide to fair use and our guide to publication contracts. We also feature news on copyright policy and advocacy.

If you have questions about rights reversion, we can be reached at reversions@authorsalliance.org. We’d also love to hear about your experiences with assisting authors with these issues—who knows, maybe yours could be the next rights reversion success story!

 

Terminating Transfers: An Inalienable Right Under Threat

Posted July 6, 2017

Mike Wolfe headshotThe following is a guest post by Mike Wolfe, Scholarly Communications Officer at UC Davis, and the former Executive Director of Authors Alliance.

Sometimes, being an author means making bad deals. Authors are routinely asked to sign away their rights for the life of copyright—which lasts 70 years after death in the U.S.—and the promise of publication, or an advance, or just being done leads them to say, “yes.”

Authors always have options when they come to regret these decisions, but in the U.S. they often hold a trump card: Termination of transfers. These legal provisions, when exercised properly, let authors walk away from their copyright transfers. The linchpin that makes the whole thing work, and the feature that makes these rights so powerful, is that termination rights can’t be signed away. They work “notwithstanding any agreement to the contrary.” At least, that’s what the law says in the United States.

But termination rights are such a powerful tool for authors that they are constantly under threat. Recently a very public series of high-profile (and star-studded) lawsuits has helped to bring this into focus. First, a troubling court decision in the United Kingdom late last year created the potential to undermine the U.S. termination rights of authors worldwide, and more recently a lawsuit initiated by Sir Paul McCartney in the U.S. stepped in with the goal of protecting them.

Duran Duran, the British pop group behind “Hungry Like the Wolf” and “Rio,” wrote their top hits while under contract to assign the copyrights—a contract signed as teenagers at the very beginning of their careers. Decades later, on the hunt after valuable royalties, the band exercised their U.S. termination rights in order to regain copyright and benefit from the success they realized “across the Rio Grande” from Mexico. It’s hard to imagine that, at the time, they had any inkling of being sued in the United Kingdom for breach of contract.

But the contract Duran Duran signed was with a British company, and was subject to British law. With Duran Duran’s terminations processing in the United States, the rightsholder brought Duran Duran into court in the U.K. for violating this agreement. In a highly questionable decision, the British court hearing the matter found that Duran Duran’s proper exercise of their rights under U.S. law was nevertheless a breach of their contractual commitments. (The band was granted leave to appeal the decision in February.)

While this one decision isn’t the last word on whether British law will ultimately respect U.S. termination rights, it does set a dangerous precedent. As high-profile terminations become more common, others will try to challenge them in local courts not just in the U.K., but all around the world. And the U.K. is a particularly important leader, given its large international role in many cultural fields, and particularly in international publishing. Authors from around the world, including authors in the U.S., publish with presses based in the U.K., signing agreements subject to U.K. law.

Enter Sir Paul McCartney, who has his own set of British music publishing contracts that might have been turned against his terminations of transfers. (McCartney would have been eligible to exercise his termination rights in October 2018.) Far from letting it be, I’ve got a feeling that McCartney drove his car down to the courthouse eight days a week, dead set on fixing that hole. His recent lawsuit against Sony/ATV, filed in the United States, sought a confirmation that he may exercise his termination rights without breaching his contracts. Late last week, however, the case settled under undisclosed terms, leaving the status of Sir Paul’s termination claims unclear.

The ramifications here are important. Notably, Duran Duran did not have expert evidence of how the U.S. termination rights override contracts to the contrary. If McCartney had gone to trial and won, he would have had more than just expert evidence; he would have had a judicial opinion in his favor. These cases might not be the last word on the subject, but pursuing  termination of transfers is one way put a halt to the disturbing trend of chipping away at authors’ rights. U.S. copyright law gives all authors, regardless of nationality, a very powerful right and authors everywhere have a stake in seeing it preserved.


Authors Alliance and Creative Commons are finalizing rightsback.org, an online tool designed to assist authors in identifying their eligibility for termination of transfer rights. The tool is currently in beta, and we expect to officially launch rightsback.org this fall. We will keep our readers updated on progress. In the meantime, we encourage authors to test the tool—it’s a powerful way to learn more about termination rights.